Where a person anticipates / apprehends imminent breach of his some precious statutory or fundamental rights, the rights which the Govt. or any Public authority is obliged by law to protect, or where, they themselves, by their unlawful actions or omissions, sought to frustrate such precious right, the said person may invoke the Writ jurisdiction of concerned High Court, seeking necessary directions to the concerned Govt. / Public authority, so as to prevent / restrain in the breach of his such statutory or fundamental rights
Special remedy against Administration: The Writ Petition is a special remedy provided to people of India for enforcement of their fundamental and statutory rights against the Govt and its various agencies, and in exceptional circumstances, the writ remedy may be invoked against private bodies, who are either discharging pubic functions, or if they are acting contrary to law and in collusion with Administration.
1. The legal process in the Court of law is initiated by the presentation / institution of a Case, whether in the form of a Suit, Petition, Application etc, in the competent court of jurisdiction.
2. Every litigation presupposes the accrual of “cause of action”, that is to say, reason for initiating legal action in the Court of law.
3. Accrual of cause of action implies and presupposes infringement of litigant’s some statutory right / fundamental right / equitable right / contractual right / or any other right recognized under the statutes or customs.
4. In order to commence a legal action, the person must have some real grievance, which is the foundation of any legal action. For having right to move the court of law, the right sought to be enforced should have already come into existence, and there should be an infringement of it, or at least a serious and imminent threat exist of its infringement.
5. Writ implies the Powers of the Constitutional Courts like the High Courts and the Supreme Court to give authoritative directions to any Public Authority, or to private persons discharging public functions, to do something or refrain from doing something. Writ jurisdiction is essentially a Judicial Review of Administrative / Executive / Legislative actions / omissions.
6. Writ jurisdiction under Article 226 of the Constitution , including powers of superintendence of High Courts recognized under Article 227 of the Constitution, may also be invoked in cases where the subordinate Courts and tribunals or administrative bodies or officers have acted wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or have refused to exercised the jurisdiction vested in them, or where there is an error apparent on the fact of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems, but it is not so wide or large as to enable the High Courts to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.
A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of 'certiorari' may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of 'certiorari' but it must be a manifest error apparent on the face of the proceedings, e. g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by 'certiorari' but not a mere wrong decision. Basappa versus Nagappa .
7. In India during the British days, the three chartered High Courts of Calcutta, Bombay and Madras, were alone competent to issue writs and that too within specified limits and the power was not exercisable by the other High Courts as all "In that situation" as this court observed in 'Election Commission, India V/s. Saka Venkata Rao'.
"the makers of the Constitution having decided to provide for certain basic safeguards for the people in the new set up which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred in the States' sphere, new and wide powers on the High Courts of issuing directions, orders or writs primarily for the enforcement of fundamental rights, the power to issue such directions, 'for any other purpose' being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England".
The language used in Articles 32 and 226 of our Constitution of India is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. Basappa versus Nagappa .
8. The Writ Petition is kind of a remedy given to people of India for enforcement of their fundamental and statutory rights against the Govt and its various agencies, and in exceptional circumstances, the Writ Jurisdiction may be invoked against private persons, who are acting in collusion with Public authorities. Apart from this, as stated hereinabove, Writ jurisdiction and Article 227 jurisdiction of High Courts may also be invoked against judicial, quasi judicial bodies and administrative bodies discharging quasi judicial functions where they have acted wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or have refused to exercised the jurisdiction vested in them, or where there is an error apparent on the fact of the record, and such act, omission, error or excess has resulted in manifest injustice.
9. The true scope of Writ Jurisdiction of High Courts under Article 226 of the Constitution of India may be summarized – To ensure that law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction.
10. Writ jurisdiction is an effective tool to protect a person from being subjected to a flagrant violation of law by the acts and omissions of the administrative / executive authorities / Public officials / judicial / quasi judicial bodies.
11. Against whom Writ can be invoked: Writ jurisdiction under Article 226 and Article 227 jurisdiction of High Courts may also be invoked against decisions and Orders passed by judicial, quasi judicial bodies and administrative bodies discharging quasi judicial functions, where they have acted wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or have refused to exercised the jurisdiction vested in them, or where there is an error apparent on the fact of the record, and such act, omission, error or excess has resulted in manifest injustice.
12. The nature of rights which can be protected under Writ: The very purpose of introducing this special remedy is to safeguard peoples’ certain fundamental and key rights recognized under our Constitution, like the (i) Life and personal liberty, (ii) protection of rights conferred under various statutes and laws (that is – protection of law as guaranteed under Article 14 of the Constitution) (iii) protection against arbitrary and discriminatory laws (that is – equality before law as guaranteed under Article 14 of the Constitution) (iv) freedom of speech and expression, (v) right to practice his religion, (vi) his profession of choice, carry on business, (vii) right to assemble peaceably etc.;
And for the protection of these valuable rights, the remedy has to be speedy and inexpensive.
13. Object of Writ: The procedure prescribed for Writ is summary in nature and the Courts are empowered to grant relief at the threshold, on prima facie satisfaction of infringement or even threat of infringement of aforesaid valuable rights. The idea behind furnishing this summary remedy is to secure that law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction.
14. Types of Writ: There are five types of Writs being contemplated. They are, Habeas Corpus, Mandamus, Certiorari, prohibition and Quo warranto. The Habeas Corpus is invoked to challenge unlawful detention by Police or by any other person; Mandamus is invoked to ask for directions to any Public Authority, Govt, or to private persons discharging public functions, to do something or refrain from doing something; Certiorary is invoked challenging flagrant illegal Orders of the Courts, Tribunals or of Administrative bodies; prohibition is invoked to prevent Courts and Tribunals from passing flagrant illegal Orders; and Quo warranto is invoked to remove such persons from Public office who lacks requisite qualifications to hold that Public office. Apart from these Writs, the High Courts are empowered to issue any other Order or directions as the circumstances of the case warrants, and can mould reliefs to meet the peculiar and complicated requirement of the case.
15. Discretionary Writ Jurisdiction: Writ jurisdiction is a special jurisdiction of High Court; and High Courts may refuse to exercise this special jurisdiction when it is found that the Person has equally efficacious remedy available before other courts / tribunal or other competent authority. Therefore, in every Writ Petition, the maintainability of Writ Petition is challenged either by the Respondents or questioned by the Court itself, on the premise of “availability of alternative remedy of Suit / Appeal / any other Statutory remedy”.
Therefore, it is essential to satisfy the Court as why it is a fit case where the Hon’ble Court should exercise its extra-ordinary Writ jurisdiction. In my limited understanding of things, I have formulated a test / parameter, on the basis of which the Writ Court may exercise the Writ jurisdiction.
16. Prayer for exercise of Writ jurisdiction: Whereas number of judgments of Apex Court or of High Courts may be cited, the rational test for the exercise of this extra-ordinary jurisdiction could be, wherein the conscience of the Writ Court is satisfied that the case before it, is a fit case for intervention, wherein the Petitioners are being harassed or being seriously prejudiced, by the patent illegal acts or omissions on the part of “State” Respondents, and the Hon’ble Court may interfere, to the limited extent, so as to remove the said patent illegality, without touching upon the merits of the case.
17. Other grounds on which Writ jurisdiction may be exercised: Further, there are many Apex Court rulings which have laid down that where fundamental rights are alleged to have been infringed, or where principles of natural justice are alleged to have been infringed or where the subordinate courts or tribunals alleged to have acted without jurisdiction, the Writ jurisdiction should be exercised by High Courts.
18. The jurisdictional errors are one of the most important grounds on which the High Courts exercise their plenary and discretionary Writ jurisdiction under Article 226 & 227 of the Constitution of India.
Jurisdiction ordinarily signifies the competence of a court/ tribunals to entertain the dispute presented before it, and grant reliefs prayed / claimed for. However, the concept of jurisdiction is not confined in its application to Courts, but is also applied to every Statutory / Administrative or Constitutional body, to every Public servant / instrumentality of the State, as contemplated under Article 12 of the Constitution.
To put it more simple, jurisdiction implies the authority of the Court / Tribunals / statutory or administrative bodies, to “invoke” their powers, on a subject matter which comes before them, in the regular discharge of their duties, and take action or pass Orders in that behalf.
The errors of Jurisdiction, or to say Jurisdictional error arises, broadly, for reasons of (i) Want of Jurisdiction / without jurisdiction, that is to say, the Court/ Tribunals / statutory or administrative bodies did not had the powers to “enter upon” the subject matter which had come before it in the regular discharge of their duties; and will include instances where the Court / Authorities etc. have usurped the powers of another; and will also include instances where the condition precedents, for the exercise of powers, were not complied with; (ii) Excess of jurisdiction would imply such actions / Order where the Court / Authorities etc. although have lawfully assumed and exercised their vested powers, but in the course of exercise of their powers, they travelled beyond their powers, and have done acts or have passed Orders which they were not empowered under the law to act or to pass; (iii) Failure of jurisdiction would include such cases where the Courts / Authorities, in a given situation, have neglected / failed to exercise the discretion / powers conferred upon them. If a law confers a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of powers and authority are shown to exist. [AIR 1971 SC 33]
19. Grounds on which Writ jurisdiction may be exercised: The Apex Court have consistently held that, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice AIR 2010 SCW 7184; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [AIR 1970 SC 645; AIR 2010 SCW 7184; AIR 1999 SC 22; AIR 2012 SCW 616; AIR 2003 SC 2120; AIR 2005 SC 3936; AIR 1958 SC 86 (Constitution Bench Judg); (2011) 5 SCC 697; AIR 1969 SC 556; (2015) 6 All MR 35 (BHC)].
20. Impugned action without Jurisdiction: Among other jurisdictional errors, the errors of “want of jurisdiction / without jurisdiction of the Court / Authorities” is the most commonly occurred phenomena in our land, Bharat, that is India; and these errors may take many shapes and forms, as enunciated by our Apex Court in their various rulings. The instances of acts of “without jurisdiction” may include –
a) Breach of law: Where the Courts / Authorities, etc, have acted without complying with the essential requirements of law, which are aptly spelled out in the provision of law, and which forms the conditions precedent for the exercise of powers; or where the exercise of powers is in disregard of substantive and specific provision of law, which has immediate bearing on the controversy at hand; or where the exercise of powers was contrary to law of the land, in force, and that the said exercise of said powers were without any legal support or sanction.. [AIR 1964 SC 322; (1990) 4 SCC 90]
b) Breach of procedure prescribed under the law: Where the Courts / Authorities, etc, have acted or have passed an Order without following the procedure / or in breach of the procedure established under the provision of law. [(1990) 4 SCC 90; AIR 2007 SC 3153; AIR 1964 SC 322]
c) Breach of principles of natural justice: It may be noted that the principles of natural justice in many statutes forms part and parcel of procedure prescribed under that statute / law; and disregard of any of these statutory provisions would result in action / Order passed without following the procedure / or in breach of the procedure established under the provision of law, resulting in jurisdictional error.
d) Disregarding Precedents: There are rulings of Apex Court which have laid down that, in the due exercise of powers, if the Courts / Authorities disregards the precedents / judgments of Apex Court, such action / Orders suffers from jurisdictional error. [AIR 2008 SCW 7153]. There is a Bombay High Court ruling on the same lines. (1998) 1 Bom.C.R.397. It also amounts to contravention of the fundamental policy of Indian law. [AIR 1994 SC 860; AIR 2015 SC 620]
e) The Apex Court in a case have gone to the extent of holding that, a person has a “discretion to disobey” an Order of the Authority if in his view, the said Order was without jurisdiction and which resulted in infringement of his fundamental rights. [AIR 1974 SC 1471]
21. Other forms of Jurisdictional errors: The jurisdictional error may also arise due to errors of law as held by Apex Court in landmark Mafatlal Ruling. The Apex Court observed to say that the inferior court or tribunal lacks jurisdiction / exceeds jurisdiction if it enters upon such an inquiry or, having jurisdiction in the first place, it proceeds to arrogate an authority withheld from it by perpetrating a major error of substance, form or procedure, or by making an order or taking action outside its limited area of competence. The Apex Court further said, A tribunal lacks jurisdiction if (I) it is improperly constituted, or (2) the proceedings have been improperly instituted, or (3) authority to decide has been delegated to it unlawfully, or (4) it is without competence to deal with a matter by reason of the parties, the area in which the issue arose, the nature of the subject matter, the value of that subject matter, or the non-existence of any other prerequisite of a valid adjudication. Excess of jurisdiction is not materially distinguishable from lack of jurisdiction and the expressions may be used interchangeably. [(1997) 5 SCC 536]
22. Nevertheless, the fine distinction between the jurisdictional errors and non jurisdictional errors must be clearly understood. Jurisdictional errors are those errors which are committed whilst “entering into” the province of the exercise of powers. The non jurisdictional errors are those errors which are committed during the course of exercise of powers, amidst the lawful invocation and lawful assumption of powers. [AIR 1954 SC 340; AIR 2003 SC 3789]
23. How to determine whether error is jurisdictional or non jurisdictional: The jurisdiction of the Court / Authority, although is an issue of law, but ultimately it has to be decided on the basis of facts of the case. Whether error in the Impugned action / Order is a jurisdictional error or otherwise, is to be decided on the basis of existence or the non existence of Jurisdictional facts.
The facts, the existence of which empowers the Court or Authority to enter upon the province of their exercise of powers over the subject matter, for adjudication or for any other legal action, are called jurisdictional facts.
Therefore, if the “jurisdictional fact” exists in the facts of the case, the Court / Tribunal / Authority had the jurisdiction; if it does not exist, the court, authority or officer cannot act.
If the Court / Authorities wrongly assume the existence of these jurisdictional facts, they commit jurisdictional error.
A “jurisdictional fact” is a fact which must exist before any Court, Tribunal or an Authority assumes jurisdiction over a particular subject matter. [AIR 1962 SC 1621; AIR 2009 SC 713] It has been held that the cause of action is a jurisdictional question of fact. [AIR 2008 SC 187]
24. Consequences of actions / Orders which are suffering from the jurisdictional errors: The actions /orders of Courts /Authorities suffering from jurisdictional errors may be declared as nullity, void-ab-initio, non est in law. Such actions / Orders may be challenged even in the execution proceedings. [AIR 1974 SC 1471; AIR 2010 SC 3823; AIR 2011 SC 514; AIR 1924 Cal 913; AIR 1954 SC 340; AIR 2003 SC 1475; AIR 2003 SC 3789; AIR 2009 SC (Supp) 923].
25. Declaration of law: One of the other ways to deal with plea of “availability of alternate remedy”, is to seek the prayer of “declaration of law” instead of direct relief. The High Courts being Court of Record have to decide the questions of law whenever raised before them.
26. PILs / Writs, same thing: In so far as Public Interest Litigations (PILs) are concerned, there is no distinction between a PIL or a Writ Petition, except to the fact that, in Writ Petition, the Petitioner is himself aggrieved and seeks relief for himself, whereas in PILs, the Petitioner raises issue of substantial public importance, and seeks relief for the society as a whole.
27. Failings of Writ remedy: Unfortunately, the Writ remedy is failing to give people a summary relief to their grievances against the Administration. By the means of this write up, I am anxious to propose a simple way to dispose of Writ cases quickly.
What is happening in the Writ Court is – the aggrieved Petitioner makes lot of arguments about the illegal action / inaction of the “State”; the “State” in turn makes lot lot lot of arguments justifying its action / inaction. All these can be avoided if the dispute / issue is crystallized, and stand of the “Respondent” is made clear, in advance.
28. In wealth of judgments, the Courts have insisted upon recording of reasons by Authorities on the premise that such a decision would be subject to judicial review and the courts cannot exercise their duty of review unless courts are duly informed of the consideration of the public / statutory authorities underlying the action under review.
29. The proposed remedy to infuse life in Writs: In my view, the bulk of Writ cases may be decided at the threshold, where there is articulated due reply by the “Respondent” to the representation made by the Petitioner therein; and where the Petitioner yet remained aggrieved by the stand of the “Respondent”, the Petitioner may approach the Writ Court, to decide the legitimacy / fairness / reasonableness, of the stand of the “Respondent”. The “stand” of the Respondent must be before the Writ Court at the threshold. This is precisely what the Writ Court do in the Writ Jurisdiction. Writ jurisdiction is essentially a Judicial Review of Administrative / Executive / Legislative actions / omissions of the “State”.
30. No replies to complaints / representations, judicial notice of this fact: There are judicial notice of facts by Hon’ble Bombay High Court that cases are being piled up in the Court because the authorities do not respond to the representations made to them. In two cases before Hon’ble Bombay High Court, it is ruled that the Public Authorities must Respond to the Representation / Complaint it receives from the people. [WP (C) 6731 / 2012; and WP (C) No. 8348 / 2009].
31. Obligation to make representation before invoking seeking Writ of Mandamus; and the reciprocal obligation of the State: When the law obliges the subject to make due representation before the concerned authority before he seeks Mandamus against them. Then, why, the Administration is not obliged to make its position clear. The Writ Court must compel the Administration to develop the habit of responding to the Representations received by them. AIR 1975 SC 538; AIR 1975 SC 460.
32. The Apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India [AIR 2005 SC 3353] have ruled that all public authorities / public officials must make a reasoned reply to the Notices received by it.
33. Writ jurisdiction can be invoked in cases of (a) Police illegalities of unlawful arrests / detentions (including compensation), refusal to register FIR, investigation of crime, etc; (b) Private entity / persons blatantly makes the mockery of provisions of laws and authorities turning a blind eye to it; (c) Public Nuisance; (d) Actions contrary to law by Public authorities; (e) Gross misuse of discretionary powers by Public authorities; (f) Usurpation / Exercise of powers by Public authorities when there is none; (g) Issuance of Notice by Public authorities without justifiable reasons; (h) No reply to just complaints / representations made before Public authorities; (i) Failure in discharge of duties by Public authorities obligated under the law; (j) Refusal of exercise of powers by Public authorities when the circumstances exists for due exercise of it; (k) Preventing authorities from taking any unlawful action; (l) Flagrant illegal orders passed by Courts, Administrative authorities, Quasi judicial bodies, etc. (m) Mischievous frustration of contractual obligations by Administration; (n) Denial of Policy benefits / withdrawal of; (o) Perjury Applications u/s 195(4) of CrPC, 1973 r/w Article 227 of the Constitution of India; (p) Challenge to discriminatory / offensive / vague / oppressive / irrational laws.
34. The summary procedure of Writ: The procedure contemplated for Writ cases is purposely kept simple and short. After making due representation, the Writ Petition may be filed in the concerned High Court; and in case of extreme urgency, the case may be mentioned before the concerned Bench of the High Court by submitting a small Application called “Praceipe”; and the concerned Bench, on satisfaction of the urgency being shown, may grant urgent hearing to the case and may grant immediate interim reliefs.
35. There had always been confusion amongst the lawyers as whether Writ jurisdiction is to be invoked under Article 226 or Supervisory jurisdiction of High Court under Article 227 is to be invoked whilst challenging the Orders passed by Civil Courts, Criminal Courts, Tribunals and quasi Judicial bodies. The judgment of Apex court in the case of Radhey Shyam Versus Chhabi Nath  appears to have settled this controversy. The essence of the judgment is, all Orders passed by Civil and Criminal Courts may only be challenged under Art.227 of our Constitution and not under Article 226. And, all Orders passed by Tribunals or by any other Quasi judicial bodies may be challenged under Article 226, or preferably may be under Revisional Jurisdiction of High Courts under Section 115 of CPC, 1908.
36. In so far as Public Interest Litigations (PILs) are concerned, they are filed in the High Courts under Article 226 of the Constitution and before Supreme Court under Article 32 of the Constitution. There is no distinction between a PIL or a Writ Petition, except to the fact that, in Writ Petition, the Petitioner is himself aggrieved and seeks relief for himself, whereas in PIL jurisdiction, the Petitioner does not seek any relief for himself, but raises issue of substantial public importance, and seeks relief for the society as a whole.
37. Justice is based substantially on natural ideals and human values. The exercise of adjudicating and declaring rights and legal obligation of parties, by employing laws of the land and the principle of equity, by a competent court of jurisdiction, may be called as the exercise of administering justice.
38. I am hasten to add here the notable observations of the Apex court in the case of State Of Uttaranchal Versus Sunil Kumar Vaish, judgment of the year 2011.
Para 18: Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based, on mainly events which happened in the past. Courts' clear reasoning and analysis are basic requirements in a judicial determination when parties demand it so that they can administer justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided.
Para 19: Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties' submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system.
No adverse Order if No adverse findings
1. It is typical for Courts and Judges, whilst passing Orders and decisions, (to commit basic and elementary mistakes, and most of the times consciously) outright overlooking some of the very material facts and evidences / submissions / Judgments cited, by the losing Party; and drive themselves to irrelevant consideration of facts.
2. Before discussing the aforesaid expression “No adverse Order if No adverse findings”, let us first broadly look at the decision making process.
3. Broadly, the decision making is a process wherein, having regard to the Reliefs claimed, the presiding Judge – (a) examine the (legality) of facts alleged, (b) examine the (legality) of stand of the adversary, (c) examine the materials and the evidences which are placed before him in support of the facts alleged by both the sides; (d) would record his reasoned finding (prima facie or conclusive) as to the existence or the non existence of the facts alleged.
4. The process of recording finding of facts is, having regard to the applicable laws and precedents, testing of facts and evidences, and drawing natural, logical and legal inferences and outcomes, which necessarily flows from those facts and evidences [the facts would mean those facts which are self evident or are admitted, or facts which are reasonably proved, disproved or not proved]. Appreciation of facts and evidence is also an exercise wherein the existence of certain facts and evidence, provokes or persuades the decision maker to reach a certain conclusion.
5. Once findings as to facts are arrived at, the decision follows, either granting the reliefs claimed for, or the denial of.
6. However, what is witnessed in many Orders of the Courts is – either (a) In the process of finding of facts, findings on significant material fact are not recorded at all, by overlooking all the materials and evidences and submissions of the losing party, which are placed on record; the evidences and submissions, which had a direct bearing on the decision of the Court; or (b) whilst recording finding as to material fact, some of the material facts agitated / evidences / submissions / Judgments cited are not dealt with. The situation (a) mainly occurs in discretionary jurisdiction Orders/ Interim /Ad-Interim Orders / and Orders passed at Appellate stage; and situation (b) occurs in Orders passed in original proceedings. [Material facts would mean such facts which naturally arises in the nature of legal proceeding and nature of reliefs claimed]
7. In wealth of judgments, the Apex Court and High Courts have insisted upon recording of reasons whilst arriving at findings of facts and law. In a case (AIR 2011 SCW 5486) before it, the Apex Court have observed to say that Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning, on law and facts.
8. Therefore, IF it is contempt of the Court, if reasoned findings are not recorded, then it is regressive and aggravated contempt, to not to record findings at all.
9. Can we really compel the Courts to record finding of fact in their decisions? At least the Apex Court in a case before it [(2006) 9 SCC 222], have said Yes. The Apex Court have held that before subjecting a party to the adverse decision, adverse findings must be recorded against it.
The Apex Court in the aforesaid case, have set aside the Order of the High Court on the grounds that, the High Court, before directing the Defendants to “clear the encroachment”, should have recorded the findings that “Defendants had entered upon the suit land and put up construction subsequent to the undertaking given to the trial court”.
It was a case where the Defendant in a Suit gave undertaking to the trial Court that Defendants will not interfere with the possession of the Plaintiff’s land. The Suit was disposed of on the basis of above undertaking. Thereafter, the Plaintiff moved Execution Application under O.21 R.32 before the trial Court alleging that Defendants have constructed some structure on the Suit land. The trial Court dismissed said Execution Application. The Plaintiff challenged trial Court’s Order before High Court. The High Court directed the Defendants to clear the encroachment effected by them on the suit land. In this backdrop, the Apex Court set aside the Order of the High Court on the grounds that, the High Court, before directing the Defendants to “clear the encroachment”, should have recorded the findings that “Defendants had entered upon the suit land and put up construction subsequent to the undertaking given to the trial court”.
10. The Illustration: To illustrate the proposition of “Findings”, agitated hereinabove, therefore, in a Writ Petition, the High Court, before refusing to exercise its writ jurisdiction on the grounds of availability of alternate remedy, and depending upon the nature of facts alleged, must record a prima facie finding that, having regard to the facts on record, (a) fundamental rights of the Petitioners are not infringed; and / or (b) principles of natural justice have not been infringed; or (c) the Authority / Subordinate court / Tribunals have acted within their respective jurisdiction. This is because, there are ample judgments of Apex Court, wherein it is held that, on the existence of any of the aforesaid grounds in the case, notwithstanding availability of alternative remedy, the High Courts must exercise their Writ Jurisdiction under Article 226 of the Constitution of India. [AIR 1970 SC 645; AIR 2010 SCW 7184; AIR 1999 SC 22; AIR 2012 SCW 616; AIR 2003 SC 2120; AIR 2005 SC 3936; AIR 1958 SC 86 (Constitution Bench Judg); (2011) 5 SCC 697; AIR 1969 SC 556; (2015) 6 All MR 35 (BHC)]
Similarly, in an Application for Anticipatory Bail, the Session Judge / High Court, before rejecting Anticipatory Bail must record a prima facie finding that, having regard to the facts on record, (a) the Applicant is not cooperating in the investigation; (b) custodial interrogation of the Accused is essential; or (c) There is a apprehension of tampering of the witness by the Applicant; or (d) There is a possibility of the Applicant to flee from justice; or that there is a possibility of the Accused's likelihood to repeat similar or the other offences.
11. The necessity of recording of finding on material facts, would take away the arbitrary and whimsical discretion of the Courts, for, they have to record findings, based on facts and evidences which are explicitly placed on record. And when the facts / evidence are seen large, the Courts may abstain from recording illogical findings, which are contrary to facts / evidence placed on record, and seen large.
This is how the captioned proposition should come into play, that is, “No adverse Order if No adverse findings”.
The concentrated view which emerges runs to the effect that every decision / Order of the court, be interim or final, must be based on findings of facts recorded by it, whether prima facie or conclusive, on such facts which naturally arises in the nature of legal proceeding and nature of reliefs claimed.
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